1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JAMES SPEARS, : Case No. 2:12-CV-0725 

 : 

 Plaintiff, : JUDGE ALGENON L. MARBLEY 

 : 

 v. : 

 : Magistrate Judge Terence Kemp 

COMMISSIONER OF : 

SOCIAL SECURITY, : 

 : 

 Defendant. : 

 

OPINION AND ORDER 

Plaintiff, James Spears, brings this action seeking review of a final decision of the 

Commissioner of Social Security (“Commissioner”) denying his application for Social Security 

Disability Benefits and Supplemental Security Income. This matter is before the Court for 

consideration of Plaintiff’s Objections (Doc. 15) to United States Magistrate Judge Terence J. 

Kemp’s Report and Recommendation (Doc. 12), recommending that the Court affirm the 

decision of the Commissioner. For the reasons stated below, the Court OVERRULES Plaintiff’s 

Objections, ADOPTS the Magistrate Judge’s Report and Recommendation, and AFFIRMS the 

Commissioner’s decision. 

I. BACKGROUND 

 Plaintiff Spears filed an application for social security disability insurance benefits 

alleging disability since May 18, 2007 due primarily to cardiac impairments.1

 The record reflects 

that Drs. Nichols, Gahman, Albert, Handel, and Baig evaluated Plaintiff’s medical condition. 

Drs. Nichols, Gahman, and Albert concluded that Plaintiff’s medical conditions prevented him 

from returning to work as a commercial driver, but he nonetheless could do light work with a 

                                                            

1

 The May 20, 2013 Report and Recommendation contains a detailed summary of the administrative testimony and 

medical evidence in this case. (See Report & Recommendation, Doc. 12, at 1-5.) 

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restriction on heights, hazardous machinery, and no commercial driving. In contrast, Dr. Handel, 

Plaintiff’s cardiologist, stated that Plaintiff “is not able to continue gainful employment due to 

continued symptoms and his need to rest at least [one-half] hour for every two hours of physical 

activity.” Plaintiff was referred to Dr. Baig by Dr. Handel for consultation on a number of 

occasions. (Report & Recommendation, Doc. 12, at 2-3.) 

On August 11, 2010, the Administrative Law Judge (ALJ) issued a decision finding that 

Plaintiff was not disabled. On June 13, 2012, the Appeals Council denied review of this decision. 

In his Statement of Errors, Plaintiff asserted that the ALJ erred in failing to accord proper weight 

to the opinions of the treating specialists, and that the ALJ did not properly evaluate his 

subjective complaints of pain given his documented heart condition. 

On May 20, 2013, the Magistrate Judge recommended that the Court affirm the decision 

of the Commissioner. The Magistrate Judge concluded that substantial evidence supported the 

ALJ’s weighing of the medical evidence; that the ALJ did not err by not giving full weight to the 

views of Dr. Handel and Plaintiff; and that substantial evidence supported the ALJ’s credibility 

finding. Plaintiff reiterates the arguments made in his Statement of Errors in his Objections to the 

Magistrate Judge’s Report and Recommendation. 

II. STANDARD OF REVIEW 

If a party objects within the allotted time to a report and recommendation, the Court 

“shall make a de novo determination of those portions of the report or specified proposed 

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also

Fed.R.Civ.P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, 

the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). 

The Court’s review “is limited to determining whether the Commissioner’s decision ‘is 

supported by substantial evidence and was made pursuant to proper legal standards.’” Ealy v. 

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Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm’r of Soc. Sec., 

486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (“The findings of the 

Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be 

conclusive.”). “Substantial evidence exists when ‘a reasonable mind might accept the evidence 

as adequate to support a conclusion [and] ... presupposes that there is a zone of choice within 

which the decision-makers can go either way, without inference by the courts.’” Blakley v. 

Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal citation omitted). Even if 

supported by substantial evidence, however, “‘a decision of the Commissioner will not be upheld 

where the [Commissioner] fails to follow its own regulations and where that error prejudices a 

claimant on the merits or deprives the claimant of a substantial right.’” Rubbers v. Comm’r of 

Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 

742, 746 (6th Cir. 2007)). 

III. ANALYSIS 

 Within his brief objections, Plaintiff maintains that the ALJ failed to give appropriate 

weight to the opinions of Plaintiff’s treating cardiologist, Dr. Handel, and treating 

electrophysiologist, Dr. Baig. Plaintiff contends that Dr. Handel’s opinion is not inconsistent 

with the weight of the evidence and should have been given controlling weight. Plaintiff 

emphasizes that Dr. Handel and Dr. Baig are specialists who have treated Plaintiff on multiple 

occasions. Plaintiff contends that they are therefore in the best position to compare Plaintiff’s 

complaints of pain with the medical record. Plaintiff also contends that the ALJ failed to consider 

properly Plaintiff’s pain complaints in light of his documented heart condition. 

 Having performed a de novo review pursuant to 28 U.S.C. § 636(b), Plaintiff’s objections 

are OVERRULED. The Report and Recommendation addressed these issues and the Court 

agrees with, and adopts, the Magistrate Judge’s reasoning. 

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 In addressing Plaintiff’s first assignment of error, the Magistrate Judge analyzed the 

appropriateness of the weight the ALJ assigned to the opinions of Plaintiff’s treating specialists 

as follows: 

As to plaintiff’s first assignment of error, here, the ALJ explained his decision to 

give little weight to Dr. Handel’s report about plaintiff’s need to rest for one-half 

hour during every two hours of exertion in this fashion: 

The May 21, 2008 opinion by Dr. Handel that the claimant was not 

a candidate for rehabilitation or employment due to this marked 

disabilities and low ejection fraction (Exhibit 10F), is entitled to 

very little weight. Ordinarily, treating source opinions are to be 

given controlling weight if well supported by medically acceptable 

clinical and laboratory diagnostic techniques and not inconsistent 

with the other substantial evidence. . . . The physical residual 

functional capacity assessed by Dr. Handel is not only inconsistent 

with the overall objective medical evidence, including the doctors 

(sic) previous examinations and treatment notes, it is inconsistent 

with his examination and assessment performed on the same day 

his opinion was made. . . . It appears that the doctor relied quite 

heavily on the subjective reports of symptoms and limitations 

reported by the claimant and seemingly accepted uncritically as 

true most, if not all, of what the claimant reported. Given the 

foregoing, the residual functional capacity assessed by Dr. Handel 

is not an accurate representation of the claimant’s physical residual 

functional capacity status, it is therefore entitled to little weight. 

Further, a November 21, 2008 office visit note shows that even 

though having “done well from a cardiac standpoint” the 

claimant’s denial of any “chest pain, palpitations, syncope or 

transient ischemic attacks,” the claimant continued to rest at least 

thirty minutes every two hours when he does any physical activity 

because of marked fatigue” (Exhibit 16F). Despite argument by 

the claimant’s attorney at the hearing that Dr. Handel’s notes was 

(sic) the equivalent of a medical source statement of prescribed 

limitations, the undersigned finds that his notes were merely a 

recitation of the claimant’s stated symptoms and his own response 

to those symptoms. 

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(Report & Recommendation, Doc. 12, at 7-8.) Plaintiff contends that the objective evidence 

“clearly indicates that Mr. Spears is only able to perform sedentary work at best.” (Objection, 

Doc. 15, at 5.) The Magistrate Judge specifically addressed this argument in his Report and 

Recommendation, and found that substantial evidence supported the ALJ’s rejection of the 

treating specialists’ opinions as follows: 

Plaintiff does not appear to be arguing that the rationale provided by the ALJ does 

not meet the articulation requirement explained in cases such as Wilson and 

Rogers v. Comm’r of Social Security, 486 F.3d 234, 242 (6th Cir. 2007), but 

rather that the reasons given by the ALJ for according only slight weight to Dr. 

Handel’s (and also Dr. Baig’s) opinions are not supported by the record. More 

specifically, plaintiff contends that Dr. Handel’s opinion, rather than being 

inconsistent with his own treatment notes and the overall medical record, is “very 

much supported by the objective medical findings ....” Plaintiff’s Statement of 

Errors, Doc. 8, at 8. He cites to the multiple tests showing an ejection fraction of 

less than 35%, the fact that testing reported by Dr. Handel on May 20, 2010 

showed severe hypokinesis of multiple segments of plaintiff’s heart muscle, and 

the fact that both Dr. Handel and Dr. Baig rated plaintiff’s condition as either 

functional class II or functional class III of the New York Heart Association. 

Taking this last statement first, the record before the Court does not appear to 

explain what such a rating means. However, to the extent that the Court may take 

judicial notice with regard to that matter from the American Heart Association’s 

website (www.heart.org), Class II functional capacity describes “[p]atients with 

cardiac disease resulting in slight limitation of physical activity. They are 

comfortable at rest. Ordinary physical activity results in fatigue, palpitation, 

dyspnea or angina pain,” and Class III describes “Patients with cardiac disease 

resulting in marked limitation of physical activity. They are comfortable at rest. 

Less than ordinary activity causes fatigue, palpitation, dyspnea or anginal pain.” It 

appears to be plaintiff’s argument that even if his degree of functionality is Class 

II, which involves, by definition, only “slight” limitation of physical activities, he 

would be limited to sedentary work, and would therefore be considered disabled. 

One major problem with this argument is that neither Dr. Baig nor Dr. Handel 

ever equated this classification with the ability or inability to perform any specific 

work activity. It is somewhat of a stretch to conclude that someone who becomes 

fatigued to some unknown degree when doing any activity other than resting 

cannot do even a limited range of light work, as opposed to being capable of only 

sedentary work, and the record does not compel such a finding on the ALJ’s part. 

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In other words, the ALJ did not have to treat the bald statement by either doctor 

that plaintiff’s condition was Class II or Class II-III as an opinion of disability or 

an opinion of limitation to solely sedentary work without a physician specifically 

saying so. Cf. Ray v. Sun Life & Health Ins. Co., 752 F. Supp. 2d 1229 (N.D. Ala. 

2010) (physician equated Class I or II functionality with being able to perform a 

range of light work). That means that there is no opinion from Dr. Baig that 

would translate into functional limitations consistent with only light work, and 

that the only statements from Dr. Handel which the ALJ might have had to 

construe as treating source opinions inconsistent with light work were the two 

statements he made about how much rest plaintiff needed while performing 

physical activity. 

Taking those statements in reverse order, the second of them, found in Dr. 

Handel’s report of November 21, 2008, reads in full as follows: “He still 

continues to rest a (sic) least [one-half] hour every 2 hours when he does any 

physical activity because of marked fatigue.” The ALJ refused to consider this 

statement as an opinion from a treating source as to work-related limitations 

because it merely recited what plaintiff reported, as opposed to what Dr. Handel 

thought was the impact of plaintiff’s heart condition. A reasonable person could 

reach this conclusion. The statement is clearly descriptive, and it must have been 

based on plaintiff’s own self-report, because there is nothing in the notes to 

indicate that Dr. Handel actually observed plaintiff engaging in physical activity 

for any length of time. However, it is also duplicative of the statement in the 

earlier notes, which the ALJ did treat as an opinion, so any error in the way the 

ALJ characterized this statement is harmless. 

(Report & Recommendation, Doc. 12, at 9-11.). In addition, substantial evidence supports the 

ALJ’s credibility decision, further bolstering his rejection of Dr. Handel’s opinion. The 

Magistrate Judge analyzed the appropriateness of the weight the ALJ gave to Plaintiff’s pain 

complaints regarding his heart condition as follows: 

Here, the ALJ concluded that plaintiff’s reports of disabling symptoms could not 

be accepted in full because, first, plaintiff’s doctors had advised him to exercise, 

and it was he who made the decision not to do so. Second, he identified a variety 

of daily activities which were not completely consistent with the inability to do 

any physical activities. Third, there are a number of medical records indicating 

that he was doing well and did not have symptoms of shortness of breath or 

fatigue. Fourth, he was able, at one point, to exercise on a treadmill to a fairly 

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substantial degree. These are all the kinds of factors which the ALJ is both 

entitled to and required to consider, and they all find some support in the record. 

Plaintiff argues, however, that he should have been considered to be fully credible 

because he had sought medical treatment for his heart condition beginning in 

1992 and that he consistently made efforts to obtain relief from his symptoms. He 

asserts that the ALJ simply ignored this portion of the evidence. Other than that 

specific argument, however, his memorandum merely repeats the testimony he 

gave at the hearing without stating why the ALJ erred in not accepting it in full. 

See Plaintiff’s Statement of Errors, Doc. 8, at 13. 

It is true that plaintiff has an extensive longitudinal history of treatment for his 

heart condition. Much of that history, however, predates his alleged onset of 

disability date. After he stopped working, the major issue for which he sought 

treatment was his arrhythmia, and the records show that the defibrillator largely 

corrected that problem. Even Dr. Handel’s notes show that he was following up 

with plaintiff to determine the functioning of the defibrillator in addition to 

rendering treatment – and there was not much available treatment – for the 

continued effects of plaintiff’s 1992 heart attack. In short, this history of seeking 

treatment is not so compelling as to undermine the ALJ’s credibility 

determination, which, as the Court has found, followed a correct analytical path 

and also relied on evidence which a reasonable person could have construed as a 

basis for discounting plaintiff’s testimony to some extent. 

(Report & Recommendation, Doc. 12, at 12-14.) 

The Court agrees with the Magistrate Judge’s analysis and conclusions regarding the 

ALJ’s assignment of weight to Dr. Handel’s and Dr. Baig’s opinions. In addition, the Court 

rejects Plaintiff’s assertion that the ALJ erroneously failed to consider Plaintiff’s pain complaints 

in light of his documented heart condition. The Court agrees with the Magistrate Judge and the 

ALJ that these medical sources appeared to be heavily reliant on Plaintiff’s subjective complaints 

in reaching their opinions. Moreover, based on the entire record, substantial evidence supports 

the ALJ’s determination that Plaintiff’s statement and testimony were not fully credible. 

In overruling Plaintiff’s Objections the Court stresses the standard it must apply in this 

context; the standard is one of substantial evidence. The Court’s review “is limited to 

determining whether the Commissioner’s decision is supported by substantial evidence and was 

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made pursuant to proper legal standards.” Ealy, 594 F.3d at 512 (citation omitted). Plaintiff 

provides some reasons why the ALJ might have decided to more heavily weigh Dr. Handel’s and 

Dr. Baig’s opinions. Nevertheless, the Court may not disturb the Commissioner’s decision 

simply because a different conclusion was possible. Lindsley v. Comm’r of Soc. Sec., 560 F.3d 

601, 604-605 (6th Cir. 2009). Here, for the reasons the Magistrate Judge outlined, the Court 

concludes that, at the very least, the ALJ’s decision was reasonably supported by the record 

evidence. 

Accordingly, Plaintiff’s objections to the Report and Recommendation are not well-taken 

and are OVERRULED. 

IV. CONCLUSION 

Upon de novo review in accordance with the provisions of 28 U.S.C. § 636(b)(1)(B), the 

Court ADOPTS the Report and Recommendation. Accordingly, the Court OVERRULES

Plaintiff’s Objections. (Doc. 15.) The decision of the Commissioner is AFFIRMED. The Clerk 

of Court is DIRECTED to enter JUDGMENT for Defendant. This action is hereby 

DISMISSED. 

IT IS SO ORDERED. 

s/Algenon L. Marbley_________ 

ALGENON L. MARBLEY 

UNITED STATES DISTRICT JUDGE 

DATE: September 11, 2013

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